Tardif v. City of New York ( 2021 )

19-1360
Tardif v. City of New York
United States Court of Appeals
for the Second Circuit
_____________________________________
August Term 2019
(Argued: April 13, 2020 Decided: March 18, 2021)
No. 19-1360
_____________________________________
MARY M. TARDIF,
Plaintiff-Appellant,
— v. —
CITY OF NEW YORK, SERGEANT THOMAS MCMANUS, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,
Defendants-Appellees,
NEW YORK CITY POLICE DEPARTMENT, DEPUTY COMMISSIONER JOHN O’CONNELL,
DEPUTY INSPECTOR DANIEL MULLIGAN, DEPUTY INSPECTOR EDWARD WINSKI,
POLICE OFFICER JAMES MCNAMARA, POLICE OFFICER ALENA AMINOVA, POLICE
OFFICER KENDAL CREER, POLICE OFFICER MARSHA RUMBLE, POLICE OFFICER FELIX
SCHMIDT, JOHN DOE, NYPD OFFICERS #1-13, JOHN DOE, NYPD OFFICERS #1-11,
JOHN DOE, NYPD OFFICERS #1-9, JOHN DOE, NYPD OFFICER #11,
Defendants. *
_____________________________________
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
Before: LIVINGSTON, Chief Judge, PARKER and BIANCO, Circuit Judges.
Following confrontations with New York City police officers during Occupy
Wall Street demonstrations at Union Square Park in the spring of 2012, Mary M.
Tardif brought suit against the City of New York, the New York City Police
Department, and various officers and officials. As relevant on appeal, Tardif
alleged that (1) the City violated the Americans With Disabilities Act of 1990, 42
U.S.C. § 12101 et seq., in failing to reasonably accommodate her epilepsy by timely
administering medication during her pre-arraignment detention following her
arrest, and that (2) Sergeants Giovanni Mattera and Thomas McManus committed
assault and battery under New York law when, during separate demonstrations,
each officer used force against Tardif. The United States District Court for the
Southern District of New York (Wood, J.) granted summary judgment to the City
on Tardif’s ADA claim and, following a six-day trial, a jury returned a verdict in
favor of the City and the individual officers on all the remaining claims. We
conclude that the district court properly granted summary judgment on the ADA
claim because there was no evidence demonstrating the City delayed
administering medication “by reason of” Tardif’s disability, as required under the
statute. With respect to the state law assault and battery claims, we hold that the
district court correctly determined, contrary to Tardif’s contention, that a
justification instruction was warranted on those claims because New York law
permits a police officer, even in a non-arrest situation, to use an objectively
reasonable degree of force in the performance of a public duty, including crowd
control. However, we conclude that the district court, in providing that
justification charge, erroneously instructed the jury that it could consider an
officer’s subjective intent, which is contrary to New York’s objective
reasonableness inquiry. We further conclude that, although the error was
prejudicial as it relates to the assault and battery claims involving Sergeant Mattera
and warrants a new trial, the error was harmless as to the claims against Sergeant
McManus given that his subjective good faith was never raised, or even at issue,
during the trial.
Accordingly, we AFFIRM the judgment in part, VACATE in part, and
REMAND the case for further proceedings consistent with this opinion.
STEFAN H. KRIEGER (Gabriella MP.
Klein, Lindsay A. Wasserman, James P.
Stevens, Law Students, on the brief),
Hofstra Law Clinic, Maurice A. Deane
School of Law at Hofstra University,
Hempstead, NY; Gideon Orion Oliver,
New York, NY, on the brief, for Plaintiff-
Appellant.
JONATHAN A. POPOLOW, Assistant
Corporation Counsel (Richard P.
Dearing, Aaron M. Bloom, on the brief),
for James E. Johnson, Corporation
Counsel for the City of New York, New
York, NY, for Defendants-Appellees.
JOSEPH F. BIANCO, Circuit Judge:
Following confrontations with New York City police officers during Occupy
Wall Street demonstrations at Union Square Park in the spring of 2012, Mary M.
Tardif brought suit against the City of New York (“the City”), the New York City
Police Department (“NYPD”), and various officers and officials. As relevant on
appeal, Tardif alleged that (1) the City violated the Americans With Disabilities
Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., in failing to reasonably
accommodate her epilepsy by timely administering medication during her pre-
arraignment detention following her arrest, and that (2) Sergeant Giovanni
Mattera (“Sergeant Mattera”) and Sergeant Thomas McManus (“Sergeant
McManus”) committed assault and battery under New York law when, during
separate demonstrations, each officer used force against Tardif. The United States
District Court for the Southern District of New York (Wood, J.) granted summary
judgment to the City on Tardif’s ADA claim and, following a six-day trial, a jury
returned a verdict in favor of the City and the individual officers on all the
remaining claims.
We conclude that the district court properly granted summary judgment on
the ADA claim because there was no evidence demonstrating the City delayed
administering medication “by reason of” Tardif’s disability, as required under the
statute. With respect to the state law assault and battery claims, we hold that the
district court correctly determined, contrary to Tardif’s contention, that a
justification instruction was warranted on those claims because New York law
permits a police officer, even in a non-arrest situation, to use an objectively
reasonable degree of force in the performance of a public duty, including crowd
control. However, we conclude that the district court, in providing that
justification charge, erroneously instructed the jury that it could consider an
officer’s subjective intent, which is contrary to New York’s objective
reasonableness inquiry. We further conclude that, although the error was
prejudicial as it relates to the assault and battery claims involving Sergeant Mattera
2
and warrants a new trial, the error was harmless as to the claims against Sergeant
McManus given that his subjective good faith was never raised, or even at issue,
during the trial. Accordingly, we affirm the judgment in part, vacate in part, and
remand the case for further proceedings consistent with this opinion.
BACKGROUND
I. The March 17, 2012 Arrest and Epileptic Seizure 1
In September 2011, protestors took to the streets of New York City’s
Financial District in a demonstration against rising economic inequality in
America. Those protesting as part of Occupy Wall Street, as the movement became
known, encamped in Zuccotti Park in Lower Manhattan until NYPD officers
cleared the site in November 2011. On March 17, 2012, protestors returned to
Zuccotti Park to commemorate the six-month anniversary of the Occupy Wall
Street movement. In the early afternoon, Tardif and approximately thirty other
protestors were participating in call-and-response chants on the north sidewalk of
Zuccotti Park along Liberty Street. Speaking over a bullhorn, an NYPD official
1Because Tardif’s ADA claim stemming from her March 17, 2012 arrest was dismissed at
summary judgment, we must “accept as true the facts that were sworn to or undisputed,”
Green v. Town of East Haven, 952 F.3d 394, 407 (2d Cir. 2020), “examining the evidence in
the light most favorable to, and drawing all inferences in favor of” Tardif, Williams v.
Annucci, 895 F.3d 180, 186 (2d Cir. 2018) (internal quotation marks omitted).
3
ordered the crowd to clear the sidewalk because it was blocking pedestrian traffic.
In response, Tardif and other protestors did not move but began jumping, yelling,
and dancing in place. After additional orders to clear the sidewalk were ignored,
police officers arrested multiple protestors, including Tardif. 2
Following her arrest, Tardif was transported to a local precinct at around
3:30 p.m., where she was searched, processed, and placed in a holding cell. During
her processing, Tardif informed Officer Victor Lara (“Officer Lara”) that she had
epilepsy and that her medication (Lamictal) was among the over 100 medical
supplies in her backpack, which she carried as a volunteer “street medic” during
the protests. App’x at 451. Officer Lara told Tardif that all of her personal items
would need to be inventoried unless Tardif had someone pick up her belongings.
Tardif agreed to have a friend collect her possessions and signed a form
authorizing her friend to collect “all of her belongings,” id. at 378, but informed
Officer Lara that her friend was only authorized to collect her backpack and that
her epilepsy medication should remain with her at the precinct. Her epilepsy
medication was located in a small bag inside her backpack. At around 8:30 p.m.,
Tardif’s friend arrived at the precinct to collect her belongings.
2Tardif was later charged and pleaded guilty to disorderly conduct in violation of New
York Penal Law § 240.20.
4
After learning of Tardif’s medical condition during processing, Officer Lara
informed Tardif that she would be taken to the 20th Precinct, a special medical
precinct where her medicine could be administered. Following NYPD procedures,
Officer Lara filled out a medical treatment form used for detainees with medical
needs, noting that Tardif had self-administered her epilepsy medication prior to
her arrest. Officer Lara also assured Tardif that her medication would follow her
to the 20th Precinct.
Tardif, who had a history of epileptic seizures, maintained a schedule where
she took Lamictal at 10:00 a.m. and 10:00 p.m. daily. Tardif asserts that, at around
5:00 p.m., she told an unidentified officer that she needed to take her medication
at 10:00 p.m., who responded, “Yeah, sure.” Id. at 456. Tardif further alleges that,
from 7:00 p.m. to 10:00 p.m., she repeatedly informed two unidentified male
officers that she needed to take her medication, but they did not respond to her
repeated requests for the medication.
At around 11:00 p.m., Tardif and other detainees were transferred to
Manhattan Central Booking where an emergency medical technician (“EMT”)
determined whether the detainees had medical conditions requiring special
attention. Tardif told an EMT about her epileptic condition, which, under NYPD
5
policy, required her to be medically cleared by a health professional before
arraignment.
Then, at around 1:30 a.m., on what was then March 18, 2012, Officer Lara
transported Tardif to Bellevue Hospital for medical clearance due to her history of
epileptic seizures and use of epilepsy medication. After Officer Lara informed
medical staff that Tardif required epilepsy medication, Tardif’s attending
physician provided her with a generic version of Lamictal (although her
prescription was for Lamictal XR) and documented in her medical records that
Tardif reported “no physical or medical complaints.” Id. at 142. After being
cleared medically, Tardif was ultimately transported by Officer Lara to the 20th
Precinct around 4:30 a.m.
Officer Cystallee Otero (“Officer Otero”), the cell attendant that morning,
was assigned to monitor Tardif and five other female detainees with medical
needs. At around 7:00 a.m., after Officer Otero introduced herself, Tardif informed
Officer Otero that she had epilepsy and needed her medication. Officer Otero
responded that “she would speak to a supervisor to ensure that [Tardif] got [her]
medication.” Id. at 460. Officer Otero left and returned, telling Tardif that “it
generally takes about an hour to get a prisoner medication” and that “they would
6
try to get [Tardif her] medication soon.” Id. According to Tardif, Officer Otero
checked on her “regularly” for the next three to four hours and “expressed her
concern” for Tardif’s epileptic condition. Id. During this time, Officer Otero also
“repeatedly told [Tardif] that she was trying to obtain attention for [Tardif], but
she was not getting a response from her superiors.” Id.
In the early afternoon, Officer Otero observed Tardif begin to shake, lose
consciousness, and collapse to the floor of her cell. Officer Otero retrieved the keys
to the cell, turned Tardif on her side, and held her until she regained
consciousness. Shortly after being dispatched, EMTs arrived at around 2:00 p.m.
and transported Tardif to Bellevue Hospital by 2:15 p.m., where she received a
dose of Lamictal and was again medically cleared for arraignment. Tardif was
transferred back to the 20th Precinct, arraigned that evening, and released on her
own recognizance.
II. The Two Police Confrontations on March 21, 2012
A. The Early Morning Incident
At trial, the parties testified regarding two confrontations between Tardif
and NYPD officers that occurred during Occupy Wall Street demonstrations in the
early morning and afternoon of March 21, 2012. The previous evening, around
7
eighty to one-hundred protestors encamped inside Union Square Park, and about
seventy police officers in the area monitored the demonstration. Around
midnight, a line of police officers moved southward through the park ordering,
and sometimes physically moving, protestors out. After clearing the area, officers
placed metal barricades along the park’s southern stairs, with about forty police
officers stationed on the inside of the barricades and the group of eighty to one-
hundred protestors congregated outside along the 14th Street plaza. The
remaining thirty or so officers stationed themselves about ten feet to the east and
west of the protestors. Among these officers was Sergeant (now Lieutenant)
Mattera, who was deployed to Union Square Park for crowd control.
After being removed from the park, the demonstrators, including Tardif,
began shaking the metal barricades and yelling at the officers. At around 2:00 a.m.,
police officers told protestors that sanitation workers would confiscate and discard
any unattended property. Daniel Shockley, a volunteer legal observer with a non-
profit organization, and Stephanie Shockley, his wife, testified that officers moved
into the crowd and, in some cases, confiscated items that people were standing
next to and, in other cases, grabbed items out of people’s hands and passed them
8
to sanitation workers for disposal. According to Tardif, one officer confiscated her
backpack.
Tardif testified that, after confiscating unattended property, the officers on
both sides of the protestors moved their lines inward, causing the protestors to
back into each other. According to Tardif, an unidentified officer then came
through the police line and shoved her in the chest with his baton, causing her to
hit the ground. Tardif testified that, as she rose to her feet and “took a couple of
steps,” Sergeant Mattera “quickly” approached her and grabbed her shirt. Id. at
893-94. Tardif—then a 23-year-old, standing 5’1’’, and weighing 175 pounds—
testified that Sergeant Mattera “twisted and threw [her] away from him” onto the
ground. Id. at 894. As Tardif hit the ground, her head struck the pavement,
causing her to sustain a concussion and lose consciousness. Tardif testified that,
prior to her interaction with Sergeant Mattera, she “had not put [her] hands on
any other officer” and was six or seven feet from the closest officer when he
grabbed her. Id. at 897.
Daniel Shockley testified similarly. He stated that, about ten feet from him,
he observed Tardif “just standing with other protestors a few feet away from the
police” and that he “saw an officer lunge out of the group of police officers and
9
grab” Tardif. Id. at 703-04. According to Shockley, Sergeant Mattera “spun
[Tardif] around” and “threw her backwards.” Id. at 704. He further testified that
Tardif “landed on her back” and the back of her head “hit the sidewalk.” Id. at
705-06. Shockley then stated that, after this confrontation, protesters began yelling
for a medic, but Sergeant Mattera did not move toward Tardif or attempt to render
any aid after pushing her.
For his part, Sergeant Mattera testified to a different version of events.
According to Sergeant Mattera, Tardif suddenly appeared in his field of vision and
“looked as if she was about to run into the back of [another] police officer.” Id. at
797. It also “looked like she had her hands on the back of [a] police officer.” Id. at
776. In an effort to “prevent the situation from further escalating,” id. at 801, he
“instinctively” grabbed Tardif and “pull[ed] her off to the side,” id. at 797, causing
her body to “twist[] around” toward him, id. at 781. Sergeant Mattera further
testified that his “intention was to pull her off to the side and get her away from
the police officer that she was running into,” id. at 800, but “she was a lot heavier
than [he] expected” and, during this motion, he “lost grip of her and she fell
down,” id. at 797. According to Sergeant Mattera, he did not intend for Tardif to
fall to the ground and was unable to break her fall. He also testified that he did
10
not believe that he “could have used less force to accomplish [his] goal.” Id. at 802-
03. He further explained that he did not place Tardif under arrest because he
“didn’t feel like she knew what she was doing.” Id. at 801. He thought “she was
running up to see what was going on” and it was a “coincidence that . . . the one
person that she ran behind was a uniformed police officer.” 3 Id. at 801.
Shortly after the incident, an ambulance arrived and Tardif was thereafter
transported to Beth Israel Hospital at 4:00 a.m., where she was diagnosed with and
treated for a concussion, and given a soft cast and crutches for a sprained ankle.
B. The Afternoon Incident
After receiving treatment at Beth Israel Hospital, Tardif returned to Union
Square Park later that same morning in order to confront the then-unidentified
officer with whom she had the earlier incident. At that time, there were around
forty to fifty protestors inside the park and an estimated sixty to seventy-five
police officers stationed in the park for crowd control. According to Sergeant
McManus, the protestors in the park were taunting the police.
3Frame-by-frame video footage of the encounter, although not capturing the lead-up,
shows Sergeant Mattera’s left hand clenched onto the back of Tardif’s shirt near her
midsection. Tardif is subsequently seen falling backwards. Tardif lands several feet from
where Sergeant Mattera contacted her. Protestors in the background can then be heard
shouting for a medic. Daniel Shockley can be seen in the video watching the encounter
as it transpired.
11
Sometime that afternoon, Sergeant McManus and ten to fifty other officers
formed a police line around one of the protestors who was being arrested in order
to prevent others from interfering with the arrest. Tardif testified that, when she
arrived at the park, she walked up and down the police line with her crutches from
a few feet away. According to Tardif, while she was moving, Sergeant McManus
came “through the line . . . and pushed” her. Id. at 905. Tardif fell backwards off
of her crutches and hit the ground, although two bystanders broke her fall. Tardif
further testified that Sergeant McManus then “turned and walked back behind the
police line.” Id. at 907. Tardif was not arrested.
However, during Sergeant McManus’s testimony, he categorically and
repeatedly denied using any force against Tardif. In particular, Sergeant
McManus explained that, while standing in the police line, he thought one
protestor “was going to try to go by [him], and then [he] looked to [the] left and
saw Mary Tardif on the ground.” Id. at 825. Thus, according to Sergeant
McManus, the first time he saw Tardif was when he “turned around and saw her
12
. . . on the floor” approximately ten to fifteen feet from him. Id. at 826. He
emphasized that his hand never touched Tardif. 4
III. Procedural History
Tardif brought this action in the Southern District of New York on June 13,
2013 and, following discovery, filed the operative complaint on January 15, 2016.
As relevant here, Tardif alleged that the City violated the ADA in failing to
reasonably accommodate her epilepsy by providing access to her epilepsy
medication while in police custody on the morning of March 18, 2012. She also
alleged that Sergeants Mattera and McManus, in the course of their employment
as police officers, committed assault and battery against her in violation of New
York law.
A. Summary Judgment
On June 1, 2016, the City moved for summary judgment on, inter alia,
Tardif’s ADA claim, her assault and battery claims against Sergeant McManus
individually, and her respondeat superior claim against the City arising from the
alleged assaults and batteries, in separate incidents, by Sergeants Mattera and
4During his testimony, Sergeant McManus was shown a photograph of the incident and
he asserted that it showed at least three people between Sergeant McManus and Tardif
as she was falling.
13
McManus. 5 Tardif opposed the motion. On February 6, 2017, the magistrate judge
issued a report and recommendation on the City’s motion.
On March 22, 2017, the district court conducted a de novo review of the report
and recommendation, adopting some of the recommendations but not others. The
district court, inter alia, granted summary judgment on the ADA claim, concluding
that “[m]ere failure [to] attend to the medical needs of a person in custody does
not in itself violate the ADA.” Special App’x at 53. The district court denied
summary judgment on the assault and battery claims against Sergeant McManus
individually, finding that there was a genuine dispute of material fact as to
whether his use of force was reasonable. The district court granted summary
judgment on the respondeat superior claim against the City.
On August 23, 2017, following cross-motions for reconsideration, the district
court adhered to its ruling on the ADA claim and explained that, to the extent
Tardif was also attempting to assert the claim under a “reasonable
accommodation” theory, there was no evidence that any failure by the City to
provide Tardif with her epilepsy medication “was due to her disability.” Id. at 64-
5 Unlike Sergeant McManus, Tardif did not name Sergeant Mattera as a defendant in her
lawsuit, but rather only sought to hold the City liable for his alleged assault and battery
under a respondeat superior theory of liability.
14
65. The district court, however, granted Tardif’s motion for reconsideration to the
extent that it had granted summary judgment to the City with respect to the
respondeat superior claim that was based on her assault and battery claims under
New York law (which had survived summary judgment), and it allowed that
respondeat superior claim to also proceed to trial. The district court also denied the
defendants’ motion for reconsideration on Tardif’s underlying assault and battery
claims against Sergeant McManus.
B. The Trial
As relevant here, three claims proceeded to trial arising from Tardif’s two
encounters with police on March 21, 2012, neither of which resulted in her arrest:
(1) a Fourteenth Amendment excessive force claim under 42 U.S.C. § 1983 against
Sergeant McManus individually; (2) assault and battery claims under state law
against Sergeant McManus individually; and (3) a respondeat superior claim against
the City predicated on the alleged assaults and batteries by Sergeant Mattera and
Sergeant McManus in different incidents. Tardif also proceeded to trial on, inter
alia, her respondeat superior claim predicated on additional assaults and batteries
allegedly committed by several officers during a separate protest near Federal Hall
in the Financial District on April 16, 2012, which resulted in her arrest.
15
With respect to the jury instructions, the district court gave a justification
instruction for the assault and battery claims, over Tardif’s objection, that allowed
the jury to consider the reasonableness of the officer’s force, including the officer’s
subjective intent. The justification instruction focused on the use of force to effect
an arrest. During deliberations, in response to a juror note regarding the
applicable standard in a non-arrest context, the district court provided the same
justification instruction, again over Tardif’s objection. The jury subsequently
reached a verdict in favor of the City and the individual officers on all of Tardif’s
claims.
This appeal followed.
DISCUSSION
I. The ADA Claim
Tardif asserts that the City failed to provide a reasonable accommodation
under the ADA by not adequately responding to her requests for medication for
her disability (epilepsy) while she was in police custody prior to her arraignment,
and that the district court erred in granting summary judgment for the City on that
claim.
16
We review de novo a district court’s grant of summary judgment, resolving
all ambiguities and drawing all permissible factual inferences in favor of the non-
moving party. See Garcia v. Hartford Police Dep’t, 706 F.3d 120, 126-27 (2d Cir. 2013).
Summary judgment is appropriate only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). Where the non-movant bears the burden
of proof at trial, the movant’s initial burden at summary judgment can be met by
pointing to a lack of evidence supporting the non-movant’s claim. See Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986).
More than thirty years ago, Congress enacted the ADA “to provide a clear
and comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The Act’s first three titles
prohibit discrimination against individuals with disabilities “in three major areas
of public life”: employment and hiring (Title I); public services, programs, and
activities (Title II); and public accommodations (Title III). Tennessee v. Lane, 541
U.S. 509, 516-17 (2004).
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
17
the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified
individual with a disability” is “an individual with a disability who, with or
without reasonable modifications to rules, policies, or practices . . . meets the
essential eligibility requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” Id. § 12131(2). A “public
entity” includes “any State or local government” and “any department, agency,
special purpose district, or other instrumentality of a State or States or local
government.” 6 Id. § 12131(1)(A)-(B).
To establish a claim under Title II, a plaintiff must demonstrate “(1) that she
is a qualified individual with a disability; (2) that she was excluded from
participation in a public entity’s services, programs or activities or was otherwise
discriminated against by a public entity; and (3) that such exclusion or
discrimination was due to her disability.” Davis v. Shah, 821 F.3d 231, 259 (2d Cir.
6The term “‘discrimination,’ which is not defined in Title II, may take its meaning from
Title I.” Henrietta D. v. Bloomberg, 331 F.3d 261, 273 n.7 (2d Cir. 2003) (citation omitted).
Title I of the ADA states, in relevant part, that the term “discriminate against a qualified
individual on the basis of disability” includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability . . . , unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation . . . of such covered entity.” 42 U.S.C.
§ 12112(b)(5)(A).
18
2016) (internal quotation marks omitted). A plaintiff may base her Title II claim
on any of three theories of liability: disparate treatment (intentional
discrimination), disparate impact, or failure to make a reasonable accommodation.
See Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009); accord Nunes v. Mass. Dep’t of
Corr., 766 F.3d 136, 144-45 (1st Cir. 2014) (detailing the three theories).
Here, Tardif proceeded solely under a reasonable accommodation theory.
There is no dispute that Tardif, who suffers from epilepsy, qualifies as an
“individual with a disability” under Title II. See 42 U.S.C. § 12102(1)(A) (defining
“disability” under the ADA as “a physical or mental impairment that substantially
limits one or more major life activities of [an] individual”); 28 C.F.R. § 35.108(b)(2)
(classifying epilepsy as a “[p]hysical or mental impairment”). Nor is there a
dispute that the City constitutes a “public entity” under Title II. Moreover, it is
clear that access to custodial medical services available throughout an arrestee’s
pre-arraignment detention constitutes “services, programs, or activities” of the
City. 7 See United States v. Georgia, 546 U.S. 151, 157 (2006) (noting that “medical
7In her reply brief, rather than continuing to link the application of the ADA to custodial
medical services, Tardif seeks to extend her legal claim by arguing more broadly that “a
safe custodial environment” was the “benefit” that the City denied her under the ADA
by failing to timely provide medication for her epilepsy. Reply Br. at 4-5. We decline to
address the broader issue because “[i]ssues raised for the first time in a reply brief are
generally deemed waived,” Conn. Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir.
19
care” constitutes part of a prison’s “services, programs, or activities” (quoting 42
U.S.C. § 12132 and citing Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998))); see
also Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (stating that
prison medical services constitute “programs, services, or activities” under Title
II).
This case thus presents the following legal question for this Court to resolve:
whether the alleged failure by the police to provide custodial medical services to
Tardif in a timely and adequate manner prior to her arraignment, by itself,
constitutes a failure to make a reasonable accommodation “by reason of” an
individual’s disability under the ADA. We hold that it does not.
In Henrietta D. v. Bloomberg, we addressed the proper standard of causation
for a reasonable accommodation claim. 331 F.3d 261, 278-80 (2d Cir. 2003). There,
a New York City agency dedicated to assisting HIV-positive residents routinely
failed to provide such residents with adequate access to public assistance benefits
and services due, in part, to “systemic breakdowns” and bureaucratic dysfunction.
Id. at 264, 273, 278. In determining whether plaintiffs had established that the
2010), but note that whether Title II applies more broadly in arrest situations has divided
our sister circuits, see City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1772-74
(2015) (dismissing the question as improvidently granted); see also id. at 1778-79 (Scalia,
J., concurring in part and dissenting in part) (noting circuit split).
20
agency had denied them public services “by reason of” their disabilities where
there were multiple potential causes of the denial, we held that, “[i]n assessing
whether one cause among many constitutes [a] proximate cause,” id. at 278,
plaintiffs must establish that their “disabilities were a substantial cause of their
inability to obtain services,” rather than “so remotely or insignificantly related to
their disabilities as not to be ‘by reason’ of them,” id. at 279. “Quite simply,” we
concluded, “the demonstration that a disability makes it difficult for a plaintiff to
access benefits that are available to both those with and without disabilities is
sufficient to sustain a claim for a reasonable accommodation.” Id. at 277. 8
Applying that standard here, there is no evidence (or even an allegation)
that Tardif’s disability made it difficult in any way for her to access benefits—
namely, medical services—that were available to all pretrial detainees. In other
words, Tardif’s epilepsy did not interfere with her ability to access medical
services, and not even her operative complaint alleges a connection between the
City’s alleged delay in administering epilepsy medication and any disability-
based reason on the City’s part. In the complete absence of evidence that Tardif’s
8 Although “the basic analytical framework of the ADA includes . . . a comparative
component,” “[i]t does not follow . . . from this framework that a plaintiff must also
demonstrate disparate impact in all cases,” including reasonable accommodation claims.
Henrietta D., 331 F.3d at 276.
21
epilepsy caused a deprivation of medical services, the fact that her disability was
her motivation for seeking out such services does not suddenly transform her
allegations regarding the inadequate medical treatment into a “failure to
accommodate” claim. At its core, the issue here is not whether Tardif was denied
medical services because she has a disability. Instead, her claim relates solely to
whether she received adequate medical treatment in police custody for her
disability, and such a claim is not cognizable under the ADA. To hold otherwise
would allow inmates to litigate in federal court virtually every medical
malpractice claim arising in a custodial setting under the auspices of the ADA.
Such a result is entirely at odds with the statutory language of Title II and its
purpose. 9
Our holding is consistent with prior case authority in this Circuit addressing
analogous situations. For example, in Doe v. Pfrommer, we held that where an
individual challenges “the substance of the services provided”—rather than
9 We note that this holding does not leave pretrial detainees, such as Tardif, without a
remedy; rather, such a claim for a denial of medical treatment can be pursued under 42
U.S.C. § 1983, as a due process claim under a deliberate indifference standard (as Tardif
alternatively asserted in her complaint). See, e.g., Weyant v. Okst, 101 F.3d 845, 856 (2d
Cir. 1996) (“[T]he official custodian of a pretrial detainee may be found liable for violating
the detainee’s due process rights if the official denied treatment needed to remedy a
serious medical condition and did so because of his deliberate indifference to that need.”).
22
“illegal discrimination”—there is no ADA violation. 148 F.3d 73, 84 (2d Cir. 1998).
Similarly, in United States v. University Hospital, we noted that “where medical
treatment is at issue, it is typically the [disability] itself that gives rise to, or at least
contributes to, the need for services” and thus held that Section 504 of the
Rehabilitation Act “prohibits discrimination against a [disabled] individual only
where the individual’s [disability] is unrelated to, and thus improper to
consideration of, the services in question.” 10 729 F.2d 144, 156 (2d Cir. 1984).
Moreover, in Cushing v. Moore, we held that the Rehabilitation Act “does not create
a cause of action based on a [disability] that is directly related to providing the
very services at issue.” 970 F.2d 1103, 1109 (2d Cir. 1992); see also Schnauder v.
Gibens, 679 F. App’x 8, 10 (2d Cir. 2017) (summary order) (rejecting the assertion
by an inmate that “denial of timely and meaningful medical treatment for his
[broken] nose constituted a failure to provide a ‘reasonable accommodation’”). 11
10“Because the standards imposed by Title II on public entities are generally equivalent
to those of § 504” of the Rehabilitation Act, “we treat claims under the two statutes
identically in most cases.” Davis, 821 F.3d at 259 (internal quotation marks omitted).
11Tardif’s reliance on our decisions in Wright, 831 F.3d at 64, as well as McGugan v. Aldana-
Bernier, 752 F.3d 224 (2d Cir. 2014), is entirely misplaced. Wright involved a claim that,
because of the plaintiff’s mobility issues resulting from his disabilities, the prison denied
the plaintiff meaningful access to programs and services that were routinely accessed by
other inmates. 831 F.3d at 73. In McGugan, we addressed a claim of intentional
discrimination, and held that an actionable Rehabilitation Act claim existed for the denial
of medical treatment “dictated by bias rather than medical knowledge.” 752 F.3d at 231.
23
Several of our sister circuits have reached the same conclusion. See, e.g.,
Simmons v. Navajo County, 609 F.3d 1011, 1022 (9th Cir. 2010) (“[T]o the extent that
the [plaintiffs] argue that [the jail] violated the ADA by depriving [the inmate] of
‘programs or activit[ies] to lessen his depression,’ such argument is not actionable
under the ADA. The ADA prohibits discrimination because of disability, not
inadequate treatment for disability.” (fifth alteration in original)), overruled in part
on other grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en
banc); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be
violated by a prison’s simply failing to attend to the medical needs of its disabled
prisoners. . . . The ADA does not create a remedy for medical malpractice.”).
Tardif attempts to support her position by relying substantially on Kiman v.
New Hampshire Department of Corrections, where a former inmate asserted
violations of Title II based upon the prison’s alleged failure to properly treat his
disease (amyotrophic lateral sclerosis), and failure to accommodate his resulting
disability. 451 F.3d 274, 276 (1st Cir. 2006). We find Tardif’s reliance on Kiman
Therefore, neither of these holdings can be construed to eliminate the statutory
requirement, in a reasonable accommodation case, that a plaintiff demonstrate that the
treatment or services were denied because of a disability, rather than for a disability. In
fact, in McGugan, we even warned against allowing “plaintiffs an almost unfettered
ability to re-frame claims of medical malpractice into federal claims of discrimination on
the basis of disability.” Id. at 234.
24
unpersuasive. As a threshold matter, we note that the First Circuit affirmed
summary judgment on the portion of the plaintiff’s claim related to the prison’s
“actions regarding his diagnosis, medical consultations, physical therapy, or
medical dosages” because the plaintiff failed to establish that such actions were
“so unreasonable as to demonstrate that they were discriminating against him
because of his disability.” Id. at 285 (emphasis added). Moreover, although the
court allowed the claim to survive summary judgment as to the alleged failure to
provide adequate medications, the court noted that there was evidence that the
corrections officers “routinely” failed to provide those medications “throughout
[the plaintiff’s] time in prison.” Id. at 286. Thus, the court’s reasoning suggested
that, under the facts of that case, the “outright denial of medical services” to a
disabled inmate over several months “despite his repeated requests” could allow
the inmate to demonstrate at trial that such denial was because of his disability.
Id. at 286-87. Here, by contrast, there is no evidence that the delay in providing
Tardif’s medication was more than an isolated and temporary incident; nor is there
any indication that the City systematically delays or denies pre-arraignment
detainees reasonable medical services for their disabilities. 12 Thus, Kiman is
12In fact, notwithstanding the alleged denial of medication, there is uncontroverted
evidence of the City’s utilization of various standard procedures to address Tardif’s
25
factually distinguishable. In any event, to the extent that the language in Kiman
could be construed as providing a more general avenue to sue under the ADA any
time there is an allegation by an inmate of a denial of medical services without the
support of a “medical ‘judgment’” by the prison, Kiman, 451 F.3d at 287, we
respectfully disagree with such a holding.
Finally, apparently recognizing the deficient record, Tardif attempts to shift
her burden to the City, arguing that the City’s unexplained inaction following her
requests for medication is sufficient evidence for her claim to go to a jury. But this
unexplained failure to provide medication, by itself, does not allow for a reasonable
inference that it was “by reason of” the individual’s disability. At summary
judgment, it is not the City’s burden to proffer a justification for the delay or denial
where the record is otherwise silent. Instead, Tardif bears the burden of
disability. Officer Lara documented Tardif’s medical condition upon learning of her
epilepsy. The City also transported Tardif to Manhattan Central Booking where she
spoke with EMTs regarding her condition. Tardif was then transferred to Bellevue
Hospital where medical professionals evaluated her condition. After Officer Lara
informed medical staff that Tardif required epilepsy medication, her attending physician
provided her with a generic version of Lamictal (although her prescription was for
Lamictal XR), documented in her medical records that Tardif reported “no physical or
medical complaints,” and medically cleared her for arraignment. App’x at 142. The City
then, as Tardif concedes, “transported her to the special medical precinct, precisely so she
could access all the benefits available to those with medical conditions.” Reply Br. at 5.
Thus, despite Tardif’s efforts to classify this case as involving the “knowing failure to
provide any services” for her disability, id. at 8 (emphasis added), it is, at best, a claim of
inadequate medical services due to an alleged delay in providing medication.
26
establishing causation at trial, and it was thus entirely proper for the City to merely
note the lack of evidence of causation supporting her reasonable accommodation
claim. See Celotex Corp., 477 U.S. at 325. Because Tardif was unable to point to any
facts in the record from which a reasonable jury could conclude that Tardif’s
epilepsy substantially caused the City’s delay in administering medication, the
district court correctly concluded that “[m]ere failure [to] attend to the medical
needs of a person in custody does not in itself violate the ADA” under a reasonable
accommodation theory. Special App’x at 53.
In sum, the record presents no facts from which a reasonable jury could infer
that there was a disability-based reason for the delay in Tardif’s medical services.
Any shortcomings that existed in the provision of medical services for Tardif’s
epilepsy provide no basis to conclude that she was denied meaningful access to
such services because of her disability, and thus the ADA claim fails as a matter of
law. Accordingly, the district court properly granted summary judgment on the
ADA claim.
II. The Assault and Battery Claims
With respect to her assault and battery claims relating to Sergeants Mattera
and McManus, Tardif argues that she is entitled to a new trial on several grounds.
27
As to the trial testimony, Tardif argues that the district court erred in restricting
the questions that could be asked on her direct examination regarding her personal
background. Tardif’s remaining two grounds focus on the district court’s
instructions to the jury on the defense of justification—that is, assessing the
reasonableness of the officer’s use of force. In particular, Tardif contends that a
justification defense by a police officer is applicable under New York law only in
an arrest situation and, thus, the district court erred in applying that instruction to
the use of force by officers against her on March 21, 2012, because no arrest was
being made. Moreover, Tardif asserts that the justification instruction erroneously
advised the jury that the officer’s subjective intent was a permissible factor in
assessing the reasonableness of the officer’s conduct.
As set forth below, the district court did not abuse its discretion in sustaining
objections to certain questions regarding Tardif’s background. We also conclude
that the district court correctly determined that a justification defense exists under
New York law for police officers utilizing force in a non-arrest situation. However,
as the defendants concede, the instruction given to the jury was erroneous because
it suggested that there was a subjective element to the reasonableness analysis,
even though New York law (like federal law) uses an objective standard to assess
28
an officer’s use of force. We further conclude that, although the error was harmless
as to the claim against Sergeant McManus (and the related respondeat superior claim
against the City arising from Sergeant McManus’s alleged conduct) because
justification was not at issue with respect to the claims against him, the error likely
prejudiced Tardif as to the jury’s assessment of Sergeant Mattera’s conduct and
warrants a new trial on the respondeat superior claim against the City arising from
his alleged assault and battery.
A. The Evidentiary Challenge
Tardif contends that, during trial, the district court erred in limiting
testimony regarding her personal background. Specifically, she contends that
such testimony was necessary to demonstrate her commitment to social justice in
order to rebut the City’s opening argument that she had exaggerated her story and
was only suing for the money.
In the City’s opening argument, defense counsel contended that Tardif was
“inventing and exaggerating” the events surrounding each of her claims at trial,
App’x at 679, and that she “want[ed the jury] to give her money for those
inventions and exaggerations,” id. at 686. During Tardif’s direct examination, in
addition to other background testimony regarding her involvement in the Occupy
29
Wall Street movement, her counsel attempted to elicit testimony regarding the fact
that Tardif adopted two children from Honduras who were refugees, that Tardif
herself was adopted from Peru, and that she worked as a sign language interpreter
for hearing-impaired children. Following multiple, sustained objections by
defense counsel, the district court at side bar instructed Tardif’s counsel that it did
not “want [him] to elicit anything that plays upon the sympathy of jurors” but
instead “to get right to the heart of matters.” Id. at 879.
At the end of Tardif’s direct testimony, plaintiff’s counsel submitted an offer
of proof as to how additional background testimony was necessary in order to
rebut the City’s theory that her lawsuit was simply motivated by money. The
district court declined the request to elicit such additional evidence, concluding
that Tardif’s testimony had made clear “that her motives are pure and that she’s
trying to make the world a better place” by making sure that “people who are
arrested [are] treated appropriately.” Id. at 925-26. Tardif now challenges that
evidentiary ruling.
We review evidentiary rulings for abuse of discretion and reverse only for
manifest error. See Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003).
Although relevant evidence is generally admissible, Fed. R. Evid. 402, district
30
courts “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence,” Fed. R. Evid. 403. Background evidence may provide necessary context
to a witness’s substantive testimony, but district courts have “wide discretion
concerning the admissibility of background evidence.” United States v. Blackwell,
853 F.2d 86, 88 (2d Cir. 1988).
Here, we conclude that the district court operated well within its broad
discretion in limiting the scope of the testimony regarding Tardif’s personal
background. More specifically, the district court determined that the proffered
testimony—namely, Tardif’s adoption of two refugee children, her own adoption
as a child, and her work as a sign language interpreter for hearing impaired
children—might prejudice the jury by playing upon their sympathies and would
waste time. Moreover, to the extent Tardif sought to introduce these details of her
“social justice commitment” to rebut the City’s accusation that she was motivated
by money in making the allegations in the lawsuit, App’x at 879, Tardif was
permitted to testify to other facts establishing her concerns for social justice. For
example, Tardif testified about the purpose of the Occupy Wall Street movement,
31
why she became involved with the movement, how she remains a member of
Occupy Wall Street, how she feels about being part of the movement, why she
continued to participate in protests after November 2011, and how she contributed
to the protests by “tend[ing] to” protestors injured during marches as a “street
[medic].” Id. at 884-85. The district court also, over defense counsel’s objection,
allowed Tardif to testify as to why she brought this lawsuit. See id. at 924 (“I had
originally wanted to make things better for people in custody that had disabilities
so that there would be a standard protocol to treat people instead of just throwing
them to the side.”). Thus, contrary to Tardif’s argument, the district court
permitted Tardif, through her testimony, to rebut any suggestion by the City that
she brought this action for financial reasons. Under these circumstances, it is well
within a district court’s discretion to determine, under Rule 403, that the probative
value of any additional background testimony is substantially outweighed by the
danger of unfair prejudice to the defendants because of juror sympathy and by the
additional time that would be necessary to explore that background, especially
where the district court concluded that there had already been “so much wasted
time from [Tardif’s] side.” Id. at 879. Accordingly, we conclude that this
32
evidentiary determination by the district court was not an abuse of discretion and
provides no basis for a new trial.
B. Justification under New York Law
Tardif also contends that the district court erred by instructing the jury on
the availability of a justification defense to assault and battery claims under New
York law. “We review a claim of error in the district court’s jury instructions de
novo . . . .” Sheng v. M&TBank Corp., 848 F.3d 78, 86 (2d Cir. 2017) (quoting Turley
v. ISG Lackawanna, Inc., 774 F.3d 140, 152 (2d Cir. 2014)). “A jury charge is
erroneous if it misleads the jury as to the correct legal standard, or if it does not
adequately inform the jury of the law.” Dancy v. McGinley, 843 F.3d 93, 116 (2d
Cir. 2016) (quoting Hathaway v. Coughlin, 99 F.3d 550, 552 (2d Cir. 1996)).
In describing the purported error in this case, Tardif takes the position that
under state law, “any force used” in a non-arrest context “must give rise to a claim
for assault and battery,” and no justification is permitted. Appellant’s Br. at 38-39.
Contrary to Tardif’s contention, New York courts have never articulated such a
sweeping theory of assault-and-battery liability and we decline to do so here.
Instead, as set forth below, we hold that New York law—consistent with federal
Section 1983 excessive force jurisprudence—permits a police officer to use an
33
objectively reasonable degree of force in the performance of a public duty,
including a non-arrest situation.
The elements of New York assault and battery and Section 1983 excessive
force claims are “substantially identical.” Posr v. Doherty, 944 F.2d 91, 94-95 (2d
Cir. 1991). Under New York law, civil assault “is an intentional placing of another
person in fear of imminent harmful or offensive contact.” Charkhy v. Altman, 678
N.Y.S.2d 40, 41 (1st Dep’t 1998) (internal quotation marks omitted); accord Girden
v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir. 2001). Civil battery “is an intentional
wrongful physical contact with another person without consent.” Charkhy, 678
N.Y.S.2d at 41 (internal quotation marks omitted); accord Girden, 262 F.3d at 203.
To succeed on assault or battery claims in the law enforcement context, a plaintiff
must also demonstrate that the defendant officer’s conduct “was not reasonable
within the meaning of the New York statute concerning justification of law
enforcement’s use of force in the course of their duties.” Nimely v. City of New York,
414 F.3d 381, 391 (2d Cir. 2005); accord Jamison v. Metz, 541 F. App’x 15, 20 (2d Cir.
2013) (summary order).
34
New York Penal Law § 35.30 establishes a justification defense for an
officer’s use of force in the performance of several enumerated public duties. The
statute states, in relevant part, that:
A police officer . . . may use physical force when and to the extent he
or she reasonably believes such to be necessary to effect [an] arrest, or
to prevent [an] escape from custody, or in self-defense or to defend a
third person from what he or she reasonably believes to be the use or
imminent use of physical force.
N.Y. Penal Law § 35.30(1). 13 Section 35.30(1) “requires the jury to conduct
precisely the same analysis as does the reasonableness standard” under the Fourth
Amendment. Heath v. Henning, 854 F.2d 6, 9 (2d Cir. 1988). Indeed, per the text of
the statute, the use of physical force “when and to the extent [the officer]
reasonably believes such to be necessary,” is the “functional equivalent” of an
objective reasonableness standard. Id. (alteration in original) (quoting N.Y. Penal
Law § 35.30(1)). Although Tardif argues that this justification defense is limited to
13Although codified in New York’s penal law compilation, New York courts have applied
Section 35.30 to both civil and criminal claims against police officers. Compare Brunelle v.
City of New York, 702 N.Y.S.2d 648, 648-49 (2d Dep’t 2000) (applying the justification
statute to civil action against the City by police officer seeking to recover damages from
injury sustained from fellow officer in the course of performing their duties), with People
v. Colecchia, 674 N.Y.S.2d 10, 11 (1st Dep’t 1998) (applying the justification statute to
manslaughter charge against police officer).
35
the circumstances enumerated in Section 35.30(1), and thus cannot apply to a non-
arrest situation involving crowd control, we disagree for several reasons.
First, we have never limited public authority defenses under New York law
to arrest situations. To the contrary, as noted above, we held in Nimely that, even
though justification is a defense under New York Penal Law, a lack of justification
is part of a plaintiff’s burden of demonstrating the unreasonableness of an officer’s
action “in the course of their duties.” 414 F.3d at 391.
Second, both the penal law and case authority in New York make clear the
limited grounds for justification articulated in Section 35.30 are not meant to be
exhaustive as it relates to any police action. With respect to the statutory
framework, New York Penal Law § 35.05(1) states, in relevant part, that “use of
physical force . . . is justifiable and not criminal when . . . [it] is performed by a
public servant in the reasonable exercise of his official powers, duties or functions.”
Id. (emphasis added); see also People v. Mattison, 428 N.Y.S.2d 355, 357 (3d Dep’t
1980) (“[Section 35.05(1)] is chiefly meant to afford limited protection when
provisions defining malum prohibitum offenses are violated in the performance
of official responsibilities.”). 14 The New York Court of Appeals likewise, without
14Tardif’s assertion that the New York Pattern Jury Instructions (“PJI”) on a justification
defense support her interpretation of New York law is also unavailing. Appellant’s Br.
36
any reference to limitations on the use of force to arrest situations, has described
the analysis of a police officer’s use of force as more broadly focusing upon
whether such force was “more than necessary under all the circumstances.” Jones
v. State, 33 N.Y.2d 275, 280 (1973) (analyzing force used by corrections officer
during a riot at a prison under the same standard as would be used by the police
in “making an arrest, maintaining someone in custody or investigating a traffic
infraction”); see also Kline v. State, 278 N.Y. 615, 616 (1938) (finding that liability
existed for an assault on plaintiff by troopers during a clash with a group of people
on a highway trying to block a truck, where the force was “without cause or
provocation and unjustifiable”); Disla v. City of New York, 986 N.Y.S. 2d 463, 465
(1st Dep’t 2014) (stating that “battery committed in the performance of a public
duty” requires “excessive force”).
Pursuant to this legal framework, New York courts have dismissed assault
and battery claims in non-arrest situations where it was clear from the record that
at 37 (citing 2A N.Y. PJI–Civil 3:4). The pattern instruction is based upon New York Penal
Law § 35.30 and discusses the circumstances enumerated in that section, including an
arrest. However, nothing in the PJI suggests that such situations are exclusive. To the
contrary, the instruction at issue is broadly entitled “Battery Committed in Performance of
Public Duty or Authority.” 2A N.Y. PJI–Civil 3:4 (emphasis added). Moreover, the
comment for this instruction also broadly references “performance of a public duty,”
which would undoubtedly include crowd control by a police officer. See id. cmt. at 24-25.
37
the use of force was justified and reasonable. In Harris v. City of New York, for
example, the Second Department affirmed the dismissal of assault and battery
claims because officers, while executing a search warrant for the plaintiff’s house,
used “reasonable force to effectuate the detention of the occupants” by
handcuffing them for the duration of the search. 62 N.Y.S.3d 411, 413-14 (2d Dep’t
2017) (internal quotation marks omitted). Likewise, in Ahmad v. City of New York,
the First Department held that “minor contact between plaintiff’s and the officer’s
hands did not constitute excessive force,” where an officer effecting a traffic stop
on foot made contact with the plaintiff while reaching into the car for the gear
shift. 15 101 N.Y.S.3d 48, 49 (1st Dep’t 2019).
Finally, we note that Tardif’s position would render a police officer
incapable of performing some of his or her most basic functions and
responsibilities using reasonable force, without being subject to civil liability for
15 In this regard, New York law is entirely consistent with the scope of the analysis of a
police officer’s use of force under the Fourth Amendment in both arrest and non-arrest
situations. More specifically, in Graham v. Connor, the Supreme Court recognized that,
where the use of force occurs “in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen,” courts should analyze the reasonableness of the use of force,
which generally requires “a careful balancing of ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” 490 U.S. 386, 395-96 (1989) (quoting Tennessee v. Garner,
471 U.S. 1, 8 (1985)).
38
assault or battery. In other words, if an officer’s ability to lawfully use any force
is constrained to the narrow contours of Section 35.30, a police officer would have
no authority to make any degree of physical contact in the performance of a
plethora of non-arrest duties, such as patting down a suspect during a traffic stop,
stopping a distracted pedestrian from walking into oncoming traffic, or engaging
in basic crowd control on New Year’s Eve in a packed Times Square or at a large
demonstration. Thus, Tardif’s interpretation of New York law is not only contrary
to the relevant case authority, but also defies logic from a practical standpoint. See
Jones v. Parmley, 465 F.3d 46, 56-57 (2d Cir. 2006) (Sotomayor, J.) (“It is axiomatic,
for instance, that government officials may stop or disperse public demonstrations
or protests where ‘clear and present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate threat to public safety, peace, or
order, appears.’” (quoting Cantwell v. Connecticut, 310 U.S. 296, 308 (1940))); see also
Edrei v. Maguire, 892 F.3d 525, 541-42 (2d Cir. 2018) (“Our sister circuits and district
courts in this Circuit have routinely applied excessive force principles to crowd
control situations. Training our focus on controlling authority, we see that this
Court has repeatedly emphasized that officers engaging with protesters must
39
comply with the same principles of proportionality attendant to any other use of
force.” (citations omitted)).
Accordingly, although neither of the two police encounters at issue on
March 21, 2012 involved Tardif’s arrest, we hold that the district court correctly
determined, under New York law, that the jury should be given an instruction
regarding justification in connection with Tardif’s assault and battery claims
involving Sergeants Mattera and McManus as it related to their alleged use of force
on that date.
C. The Justification Instruction
Tardif further argues that the justification instruction that the district court
provided to the jury on the assault and battery claims was erroneous because it
included a subjective element in the jury’s assessment of the reasonableness of the
officers’ use of force. We agree.
When charging the jury regarding the assault and battery claims prior to the
commencement of deliberations, the district court instructed that assault is “the
intentional placing of another person in fear of imminent harmful or offensive
conduct,” and that battery occurs when a person “intentionally touches another
person without that person’s consent and thereby causes an offensive bodily
40
contact.” App’x at 1076-77. The district court explained that, when an alleged
assault or battery occurred during a lawful arrest, a plaintiff must prove that the
police conduct or use of force was “unreasonabl[e] under the circumstances.” Id.
at 1077; see also id. at 1078 (“If the alleged battery occurred during a lawful arrest,
plaintiff must also prove that the officers’ use of force was unreasonable in light of
the circumstances.”). The district court further instructed—over Tardif’s
objection—that, in determining whether the officers “acted unreasonably under
the circumstances,” the jury “may consider the need for the application of force,
the relationship between the need and the amount of force that was used, the
extent of any injury inflicted, and whether force was applied in a good faith effort
to maintain or restore discipline, or maliciously for the very purpose of causing
harm.” Id. at 1077 (instruction concerning assault); see also id. 1078 (same with
respect to battery). The district court failed to provide additional instructions
regarding assault and battery claims in a non-arrest context.
On the morning the deliberations began, the jury sent a note, requesting to
view all video evidence involving Sergeant Mattera at standard speed and in slow
motion, and asking whether there is “anything unique about a police [officer]
carrying out a law enforcement function (but not a lawful arrest) that should be
41
considered when assessing an assault and battery claim.” Id. at 1203. The district
court—again over Tardif’s objection—responded with a supplemental instruction
that repeated the initial charge that was given for an arrest situation:
The answer to your question is that because police have the obligation
to maintain the public peace and to keep individuals safe, you can
determine whether they acted reasonably, and in determining that . . .
you may consider the need for the application of force, the
relationship between the need and the amount of force that was used,
the extent of any injury inflicted, whether the force was applied in
good faith—in a good faith effort to maintain or restore discipline—
or maliciously for the very purpose of causing harm.
Id. at 1105. The district court’s instruction was based upon our decision in Johnson
v. Glick, 481 F.2d 1028 (2d Cir. 1973), partially rejected by Graham v. Connor, 490 U.S.
386 (1989), where we addressed the relevant factors for a Fourteenth Amendment-
based excessive force analysis for pretrial detainees.
We conclude, as the City concedes, that the subjective intent language in the
initial instruction, as well as in the supplemental instruction, was erroneous. It is
well settled under New York law, with respect to assault and battery claims, that
the use of force by a police officer is analyzed “under the Fourth Amendment and
its standard of objective reasonableness.” Hernandez v. Denny’s Corp., 114 N.Y.S.3d
147, 151 (4th Dep’t 2019) (internal quotation marks omitted); accord Harris, 62
N.Y.S.3d at 414. Thus, New York law is consistent with the Supreme Court’s
42
Fourth Amendment jurisprudence, as set forth in Graham, which explicitly rejected
the argument that the use of Glick’s “malicious and sadistic” factor is “merely
another way of describing conduct that is objectively unreasonable under the
circumstances.” 490 U.S. at 397. The Graham Court explained that “[w]hatever the
empirical correlations between ‘malicious and sadistic’ behavior and objective
unreasonableness may be, the fact remains that the ‘malicious and sadistic’ factor
puts in issue the subjective motivations of the individual officers, which our prior
cases make clear has no bearing on whether a particular seizure is ‘unreasonable’
under the Fourth Amendment.” Id. Thus, the Court emphasized that “[t]he
Fourth Amendment inquiry is one of ‘objective reasonableness’ under the
circumstances, and subjective concepts like ‘malice’ and ‘sadism’ have no proper
place in that inquiry.” Id. at 399; accord Heath, 854 F.2d at 9 (“There is no room for
consideration of the officer’s motives or intent under this standard . . . and no
requirement that an officer have acted with an improper motive in order to have
acted unreasonably.”). 16
16We also note that, even with respect to excessive force claims under the Fourteenth
Amendment (from which the Glick framework derived), the Supreme Court has limited
the application of the Glick factors and clarified the applicable standard for such claims
brought by pretrial detainees. More specifically, in Kingsley v. Hendrickson, although
noting that the fourth Glick factor (i.e., a malicious and sadistic purpose to cause harm)
“might help show that the use of force was excessive,” 576 U.S. 389, 402 (2015), the
43
In short, the jury should not have been told that, in assessing the
reasonableness of the police officer’s use of force, they could consider “whether
the force was applied in good faith—in a good faith effort to maintain or restore
discipline—or maliciously for the very purpose of causing harm.” App’x at 1105
(supplemental jury instruction); see also id. at 1077-78 (initial jury instruction).
Once it is demonstrated that an individual police officer intended to use force of
some kind, the subjective motivations of that officer simply have no bearing on
whether the particular degree of force used is unreasonable and excessive under
the Fourth Amendment or New York law. Accordingly, because the district
court’s initial instruction and supplemental instruction on the assault and battery
claims incorporated a subjective element, those instructions were erroneous.
C. Harmless Error Analysis
Although conceding that the district court incorrectly charged the jury on
the officers’ subjective intent, the City argues that Tardif has failed to demonstrate
sufficient prejudice warranting a new trial on her assault and battery claims. We
Supreme Court emphasized that “the appropriate standard for a pretrial detainee’s
excessive force claim is solely an objective one,” id. at 397; see also Edrei, 892 F.3d at 537
(describing Kingsley’s “new formulation” of an excessive force claim under the
Fourteenth Amendment as “a modest refinement of Glick’s four-factor test” because “our
own precedents . . . have repeatedly assessed excessive force claims without looking to
subjective intent”).
44
hold that the charging error prejudiced Tardif’s assault and battery claims
involving Sergeant Mattera (as asserted against the City), but that the error was
harmless as to her claim against Sergeant McManus, as well as the corresponding
respondeat superior claim against the City.
An erroneous instruction requires a new trial if we find that the error is not
harmless. See Uzoukwu v. City of New York, 805 F.3d 409, 418 (2d Cir. 2015). Error
in a jury instruction is not harmless “when an appellant can show that the
instructions considered as a whole prejudiced [her].” Holzapfel v. Town of
Newburgh, 145 F.3d 516, 521 (2d Cir. 1998); see also Cobb v. Pozzi, 363 F.3d 89, 118
(2d Cir. 2003) (erroneous instruction not harmless when “th[e] evidence could
support a jury’s reaching the opposite conclusion” had it been instructed
correctly).
With respect to Sergeant Mattera, there are several factors that collectively
preclude us from finding that the erroneous instruction was harmless. As a
threshold matter, this is not a situation where the jury was initially provided with
a correct instruction, and the district court then misspoke in re-stating the law at
some other juncture in the charge. The jury was given the erroneous instruction
on subjective intent during the initial charge when the elements of the assault and
45
battery claims were set forth, and that same erroneous instruction was reiterated
in response to a jury note. Thus, the jury was never provided with the correct
instruction on those claims. The City points to a portion of the initial charge where
the district court discussed how the plaintiff must show that “any force used was
objectively unreasonable” and “without regard to his underlying intention or
motivation.” App’x at 1069. Importantly, however, that instruction related to the
excessive force claim under Section 1983 against Sergeant McManus. We have no
reason to believe that the jury would have assumed that such language would
apply to a different defendant on different claims, especially where the actual
instruction on the assault and battery claims not only omitted the critical language
as it relates to this issue (that is, “objectively” and “without regard to his
underlying intention or motivation”) but also affirmatively told them that good
faith did apply to those claims. See, e.g., Hudson v. New York City, 271 F.3d 62, 69-
70 (2d Cir. 2001) (holding that, even though the district court referenced “objective
reasonableness” at some point in its instruction, it did not cure the defect caused
by earlier reference to defendant’s intent because it made it “confusing as to
whether intent to do wrong was required to find a violation of [plaintiff’s] Fourth
46
Amendment rights”). Therefore, we disagree with the City’s assessment that the
error in the instruction was “technical[]” or “minor.” Appellee’s Br. at 2, 18.
Moreover, we need not guess as to whether the jury was focused upon this
particular instruction during their deliberations as it relates to the assault and
battery claims involving Sergeant Mattera, because there was a note during
deliberations that makes that focus abundantly clear. As noted above, at around
10:20 a.m. on the first day of deliberations, the jury sent a note, requesting to view
all video evidence involving Sergeant Mattera at standard speed and in slow
motion, and asking whether there is “anything unique about a police [officer]
carrying out a law enforcement function (but not a lawful arrest) that should be
considered when assessing an assault and battery claim.” App’x at 1203.
Tellingly, because the initial charge only referenced the reasonableness standard
in the context of an arrest situation, the jury astutely sent this note asking what
standard applied when the officer used force in a non-arrest situation, as they were
simultaneously seeking to review evidence regarding Sergeant Mattera. In
response to that note, the district court again repeated the erroneous instruction,
thus advising the jury that the analysis included “whether the force was applied
in good faith—in a good faith effort to maintain or restore discipline—or
47
maliciously for the very purpose of causing harm.” Id. at 1105. The district court
then replayed the requested videos for the jury. At around 2:15 p.m., after several
additional hours of deliberation, the jury again requested to review video
recordings of the incident with Sergeant Mattera and also requested to review
transcripts of both Sergeant Mattera’s and Tardif’s testimony regarding their
encounter. After viewing the video of the encounter with Sergeant Mattera
multiple times and conducting additional deliberations over the course of the next
ninety minutes, the jury reached a verdict in favor of the City and the individual
defendants. In short, the substance and timing of the note, in the overall context
of the jury’s undeniable focus on the evidence involving Sergeant Mattera,
together raise a substantial concern that the jury’s decision on the assault and
battery claims involving Sergeant Mattera may have been impacted by the
erroneous instruction. See, e.g., Heath, 854 F.2d at 8-9 (new trial required where the
district court gave an instruction when initially charging the jury, and again when
receiving a note, erroneously stating that a finding of malice was required for
plaintiff to prove the officer’s unreasonable use of deadly force).
The receipt of the note and the potential effect of the erroneous instruction
are further magnified by the nature of the proof that the jury was considering as
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to Sergeant Mattera’s conduct, which could have naturally placed his intent at the
forefront of the jury’s discussions. Although the parties provided different
accounts regarding the lead-up to Sergeant Mattera’s grabbing of Tardif, Sergeant
Mattera admitted that he “grabbed” Tardif, “pull[ed] her off to the side,” which
caused her body to “twist[] around,” and that he then “lost grip of her and she fell
down.” App’x at 781, 797. A frame-by-frame video recording of the incident,
although evolving rapidly, also shows Sergeant Mattera grabbed her. However, a
significant portion of Sergeant Mattera’s testimony related to his motivations and
good faith, thereby implicating the erroneous instruction. For example, Sergeant
Mattera testified that Tardif suddenly appeared in his field of vision and it looked
like she was about to run into the back of another police officer. To “prevent the
situation from further escalating,” he “instinctively” used force against her in
order to prevent a possible collision. Id. at 801. Sergeant Mattera further stated
that he did not intend for Tardif to fall to the ground and that he was unable to
break her fall. He also testified that he believed that he had used “the minimal
amount of force that [he] needed to use.” 17 Id. at 803.
17Although the City’s summation primarily focused on the reasonableness of the officers’
conduct without reference to mental state, we note that there was a reference in the
summation to the officers not being “these cruel, violent monsters” as plaintiff implied,
id. at 1050-51, which also could have, in combination with Sergeant Mattera’s testimony
49
Given Sergeant Mattera’s testimony, even if the jury credited Tardif’s and
Daniel Shockley’s testimony and found that the degree of force employed by
Sergeant Mattera was excessive under the circumstances, they could have also
credited Sergeant Mattera’s testimony and concluded that he had no bad motive
in using the excessive force. Such findings, if considered in the context of the
erroneous instruction, could have led the jury to find in Sergeant Mattera’s favor
because, even though he applied objectively unreasonable force, he did so “in a
good faith effort to maintain or restore discipline” and not “maliciously for the
very purpose of causing harm.” Id. at 1105 (supplemental jury instruction). That
verdict, if based on those findings and the erroneous instruction, would have been
contrary to New York law and thus prejudiced Tardif. See Dancy v. McGinley, 843
F.3d 93, 119-20 (2d Cir. 2016) (holding that erroneous instruction that allowed
consideration of subjective intent of the police officer was not harmless because
“[u]nder the district court’s instruction, the jury could have concluded that there
was no violation because [the officer] did not intend to use enough force to break
[plaintiff’s] jaw”); see also Callahan v. Wilson, 863 F.3d 144, 152 (2d Cir. 2017)
and the faulty instruction, erroneously (though perhaps inadvertently) further focused
the jury on the issues of subjective intent, such as good faith or malice. We further note
that the City’s summation was silent on whether the reasonableness standard was
objective or subjective.
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(holding that erroneous instruction on the use of deadly force was not harmless
because it “allowed the jury to decide the case on different grounds than [the law]
permits”).
In reaching this decision, we recognize that it is also entirely possible that
the jury’s verdict in favor of the City on Sergeant Mattera’s conduct could have
been based upon a finding, entirely independent of his motive, that his use of force
was objectively reasonable under the circumstances. To find harmless error,
however, we must be “convinced that the error did not influence the jury’s
verdict.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). That
standard has simply not been met as it relates to the assault and battery claims
pertaining to Sergeant Mattera when the erroneous instruction is considered, in
light of the substance of the jury note and the nature of the proof surrounding his
conduct. See Morse/Diesel, Inc. v. Trinity Indus., Inc., 67 F.3d 435, 439 (2d Cir. 1995)
(holding that charging error required retrial because “[w]e d[id] not know what
the jury would have done had it received a correct instruction”). Accordingly,
Tardif is entitled to a new trial on the respondeat superior claim against the City
based upon Sergeant Mattera’s alleged assault and battery.
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With respect to the assault and battery claims against Sergeant McManus,
the focus of the evidence and issues were entirely different, and we thus find that
the district court’s charging error was clearly harmless. Unlike the testimony
regarding the force used by Sergeant Mattera, the jury was presented with no
evidence regarding Sergeant McManus’s subjective intent for using force because
he testified that he never used any force against Tardif. Sergeant McManus
testified that he first noticed Tardif when she was on the ground approximately
fifteen feet from him. He categorically and repeatedly denied having any physical
contact with Tardif. See, e.g., App’x at 827 (“Q. You didn’t shove her in her chest
while she was on crutches? A. No.”); id. at 833 (“Q. But it’s possible you made
contact with her, isn’t that right? A. No.”); id. at 837-38 (“Q. Would you push a
woman off of her crutches simply because she was asking you for the name of
another officer? A. Absolutely not.”).
To be sure, Tardif testified that Sergeant McManus came “through the
[police] line . . . and . . . pushed” her off of her crutches while she was attempting
to locate the officer from the incident earlier that morning. Id. at 905. However, if
the jury credited Tardif’s testimony, that gratuitous use of force would have been
unreasonable no matter what the circumstances. In fact, in the City’s summation,
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Tardif’s testimony was summarized as claiming “for no reason at all Sergeant
McManus comes running out of the police line, his brow is furrowed, his skin is
blazing red, and he is filled with rage, and he pushes her off her crutches like some
villain from a Charles Dickens novel.” Id. at 1037-38. The City, in addition to
questioning Tardif’s credibility as to whether any officer did that at all, argued to
the jury (from the testimony and photos) that it could not have been Sergeant
McManus.
Therefore, even in the face of these starkly different versions of events, the
jury would have had no occasion under either version to consider whether
Sergeant McManus subjectively used force in good faith, and thereby rely on the
incorrect elements of the instruction. The only question—assuming the jury found
that a police officer had gratuitously pushed Tardif off of her crutches—would
have been whether Sergeant McManus was that officer or not. Given the limited
nature of the evidentiary dispute regarding the claims against Sergeant McManus,
we are confident that the erroneous instruction regarding subjective intent could
not possibly have influenced the jury’s verdict in Sergeant McManus’s favor on
those claims and, therefore, the error was harmless. See, e.g., Hill v. Kemp, 833 F.2d
927, 930 (11th Cir. 1987) (holding that erroneous instruction on intent was harmless
53
where alibi defense was asserted and there was no argument that a lack of intent
existed for the person who committed the offense); Hill v. Quigley, 784 F. App’x 16,
20 (2d Cir. 2019) (summary order) (holding that any error from reference to intent
in a use of lethal force instruction was harmless because “intent was not at issue at
trial”). Accordingly, no new trial is warranted as to the assault and battery claims
against Sergeant McManus and the respondeat superior claim against the City
related to his conduct based upon the erroneous instruction.
CONCLUSION
For the reasons stated, we AFFIRM the judgment of the district court as to
the ADA claim, as well as the assault and battery claims against Sergeant
McManus and the related respondeat superior claim against the City arising from
Sergeant McManus’s alleged conduct, but VACATE the judgment as to the
respondeat superior claim against the City relating to Sergeant Mattera’s alleged
assault and battery, and REMAND the case for further proceedings consistent
with this opinion.
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